Royalty Indemnity Co. v. Madrigal

• Decision Date: 16 February 1929
• Docket Number: (No. 1779.)
• Parties: ROYALTY INDEMNITY CO. v. MADRIGAL.
• Court: Texas Court of Appeals

14 S.W.2d 106

ROYALTY INDEMNITY CO. v. MADRIGAL.

(No. 1779.)

Court of Civil Appeals of Texas. Beaumont.

February 16, 1929.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Mrs. Anastasia Mateo de Madrigal against the Royalty Indemnity Company to set aside an award of the Industrial Accident Board, wherein the defendant filed a cross-action. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

Hunt, Teagle & Moseley and C. A. Teagle, all of Houston, for appellant.

Perkins & Butts, of Houston, for appellee.

O'QUINN, J.

Appellee filed this suit in a district court of Harris county, Tex., to set aside an award of the Industrial Accident Board.

Her petition contained the usual and necessary allegations. Appellant answered by general denial and by cross-action, asking judgment in its favor on its plea that the deceased was not injured and did not die from an injury received in the course of his employment.

The case was tried to a jury upon special issues, in answer to which they found that deceased, Madrigal, was injured in the course of his employment; that he received his injuries while engaged in and about the furtherance of the business of his employer, Griswold's Sons; and that appellee should receive compensation in a lump sum. On the findings of the jury judgment was entered in favor of appellee. Appellant's motion for a new trial was overruled, and it seeks to set aside said judgment by this appeal.

The record reflects: That on September 10, 1927, Antonio Madrigal, husband of appellee, was an employé of J. M. Griswold's Sons, contractors, doing street work in the city of Houston. Griswold's Sons were subscribers under the Workman's Compensation Act (Rev. St. 1925, arts. 8306-8309), and carried a policy of insurance with the Royal Indemnity Company, covering its employés, which on said date was in full force and effect. That on said date Madrigal was working as a "gravel spreader," and after work hours and after he had quit work for the day, he mounted a truck that had been hauling gravel to be used in the work being done, but which truck did not belong to his employer, Griswold's Sons, and over which they exercised no control, it being hired from one J. B. Davidson, who was in the hauling business and operated trucks to haul gravel to be paid for by the load. That while going from the place where work ceased on this Saturday evening, to the office of Griswold's Sons, for the purpose of being paid for work done prior to and up to and including Thursday of that week, the truck turned over, injuring Madrigal, from which injury he died. The point at which Madrigal was injured was not on his employer's premises, but was some mile and a half therefrom and half a mile from the place of work. Appellee gave proper notice of the injury and claim for compensation, and duly filed her claim before the Industrial Accident Board. Said claim was heard by the Industrial Accident Board which on November 26, 1927, made a final award, and appellee not being satisfied with said award gave notice that she would not abide same and in due time filed this suit to set same aside. Appellant also gave notice that it was not satisfied with said award and would not abide same, and in answer to the instant suit, within the required time, by cross-action set up its suit to set aside said award.

There was no error in the court's refusing to submit appellant's special requested issue inquiring whether deceased's employer, Griswold's Sons, contracted to furnish deceased with transportation to and from his work. The undisputed evidence showed that transportation was no part of deceased's contract of employment. Undisputed facts are not to be found by the jury.

The court did not err in refusing to submit appellant's requested issue as to whether the truck from which deceased fell, thus receiving the injury from which he died, was the property of and under the control of one Davidson or his employé. It was undisputed that Davidson was the owner of the truck, and that appellant had no control over same, other than to merely point out to the driver where to dump the gravel. The finding of undisputed facts should not be submitted to the jury.

Appellant's first and second propositions assert error in the court's refusing its request for an instructed verdict in its favor, and its sixth, seventh, and eighth propositions complain that the jury's findings that deceased was injured in the course of his employment, and that he received his injury while engaged in and about the furtherance of his master's business, are without support in the evidence. As those propositions raise the same question whether appellee had the right, under the evidence, to recover, we shall consider them together.

We think the rule is well settled by the great weight of authority that where an employé's work for the day has ended and he has been checked out, and the master has no further control over him and has not contracted to furnish him with transportation to and from his place of labor, and he proceeds to leave the place of his labor, choosing his own route and method of travel, and for his personal convenience voluntarily mounts a truck, not the property of nor under the control of his employer, and while thus traveling, and not on the premises of his employer, he is injured by a mishap to the truck, his injury cannot be said to have been received in the course of his employment, and therefore is not compensable under the Workmen's Compensation Law. American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949 (writ refused); Diaz v. Warren Bros. Co., 95 Conn. 287, 111 A. 206; Kowalek v. New York Railway, 229 N. Y. 489, 128 N. E. 888; Rausch v. Standard Shipbuilding Co., 111 Misc. Rep. 450, 181 N. Y. S. 513; Tallon v. Railway, 232 N. Y. 410, 134 N. E. 327, 21 A. L. R. 1218; Swanson v. Latham, 92 Conn. 87, 101 A. 492; London Guaranty & Accident Co. v. Smith (Tex. Civ. App.) 290 S. W. 774 (writ refused); Lumberman's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; London Guarantee & Accident Co. v. Thetford (Tex. Com. App.) 292 S. W. 857.

But appellee, by various propositions, insists:

(a) That although deceased's work for the day had ended and he had left the place of his work and was riding a truck that did not belong to his master and over which his master had no control, and his master being under no obligation to...